10.3. Product: Things that are not products

Under the Designs Act, a design must be applied to a physical product (something manufactured or hand made) to be registrable. If a design is not applied to a physical product, it cannot be registered. Common examples of what cannot be treated as a product include:

• Intangible items – Anything lacking physical form is not a product. For example, purely digital or virtual designs (like graphical user interfaces [GUIs], screen icons, or holographic projections) have no tangible form and cannot be registered.

• Designs applied to the human body – The human body is not something that is manufactured or hand made. A style applied to hair or a tattoo applied to skin is not registrable because the design is not a design in relation to a product.

In contrast, the same design applied to a manufactured item, such as the overall appearance of a wig or an artificial nail that includes a pattern and/or ornamentation could be registrable.

• Surface decoration in isolation – Visual features like patterns, ornamentation, stitching, logos or typeface designs on their own are not products and cannot be registered.

These need to be applied to a physical product to be protected. For example, a graphic logo itself is not registrable as a design, but the same logo applied as a visual feature on a T-shirt (a physical product) could be registered.

Example

In Microsoft Corporation [2008] ADO 2 the application for a design was in respect of a font. Registration was refused on the basis that ‘the present design does not disclose a product bearing visual features. It only discloses visual features’. A type font is the shape of characters - it is not a ‘thing’ in its own right. Therefore, a font cannot be a product – at most, it is a design applied to a product.

• Room designs, layouts, and blueprints – The arrangement of an interior space which includes the placement of different things is not considered prima facie registrable on the basis that a product has not been identified. The overall appearance of an individual thing, if it is something that has been manufactured or hand made, could be registered. The arrangement of items as a layout is not a thing that has been manufactured or hand made. Original drawings, blueprints, and the creative expression of architectural works are protected by Copyright.

In summary, a design must apply to a physical product to be registrable. It is the overall appearance of the physical product that is registrable. Abstract concepts, purely artistic creations, digital-only displays, or designs inherent to living beings are outside the scope of design protection and are not registrable.